Computation Of Period Of Detention For Default Bail U/S 167 CrPC Is To Be Done Afresh If Additional Offence Found Against Accused: Rajasthan HC

Dr. Justice Pushpendra Singh Bhati observed,

"This Court hereby observes that the right to seek default/statutory bail accrues to the accused in the nature of an indefeasible right, only if such remedy by preferring an appropriate application has been availed of within the prescribed window from the date of expiry of total period of detention of accused person(s) under Section 167(2) Cr.P.C., until filing of the charge-sheet."

Essentially, an F.I.R was lodged on 16.10.2021 u/s 363 I.P.C. by one Chhoturam stating that his brother's daughter, Sumitra was abducted by the accused–petitioner along with other persons; whereafter, the petitioner was taken into custody on 19.10.2021, and remained as such for one day, until ordered to be released on 20.10.2021.

However, subsequently the petitioner was re-arrested and taken into custody. The accused-petitioner alleged that the total period of the petitioner's custody was beyond the mandated time period, as prescribed under Section 167(2) Cr.P.C.

The accused-petitioner alleged that he is also entitled to statutory / default bail, and that his right to seek the same has accrued on the ground that the period, as laid down in Section 167 (2) Cr.P.C., of 90 days, was exceeded and he was kept in custody for a total period of 92 days. Through this criminal revision petition, he prayed for the court's order to be released on bail.

Notably, the court considered the following two issues and answered them accordingly:

1. Whether the Court below, in computing the total period of detention of accused person as under Section 167 (2) Cr.P.C. , during which the accused – applicant was in custody, was right to exclude the period during which he was previously remained in custody, and subsequently released on bail i.e. before which the additional offences against him were found to be made out by the investigating officer.

The court observed that the period of 90 days, as laid down under Section 167 (2) Cr.P.C., is stated to be counted when the investigation for the fresh offence(s) is started and not from the date of lodging of the FIR.

It was opined that the trial court, after appreciating relevant judicial precedents, has rightly found that the total period of detention of the accused-petitioner has to begin from 27.10.2021, until when the charge sheet was filed on 24.01.2022. And therefore, the charge sheet was rightly filed within the stipulated 90 days' time period as laid down under Section 167 (2) (a) (I) Cr.P.C, added the court.

Further, the bench also opined,

"A bare perusal of Section 167 (2) Cr.P.C. reveals that under sub-section (2) (a) (I) of 167 Cr.P.C., the period of 90 days would be computed when the investigation, with regard to that particular offence(s), began. The offence under Section 363 I.P.C. would attract the application of Section 167 sub-section (2) (a) (ii) of Cr.P.C. since the maximum / upper limit period of imprisonment under the said section would be 60 days. Regardless of that fact, this Court finds that if an additional or new offence(s) are found to be made out by the investigating authority, against an accused, then the computation of the period, as laid down under Section 167 Cr.P.C. would be done afresh."

2. Whether a bail application, under Section 167 (2) Cr.P.C., seeking default/statutory bail, filed after the charge sheet, although the charge sheet has been filed after the expiry of the prescribed statutory time limit under Section 167 (2) Cr.P.C., would be maintainable.

The court noted that the utmost significance is whether the application seeking default/statutory bail under Section 167(2) Cr.P.C. has been made before filing of the charge-sheet, or not; and the said right of the accused becomes an indefeasible right only in the circumstance that the prescribed total period has expired and the charge-sheet has not been filed. Other surrounding circumstances are however, immaterial solely with regard to such right, in such attending circumstances, added the court.

It was answered by the court that if a bail application under Section 167(2) Cr.P.C., seeking default/statutory bail, if filed after filing of the charge-sheet, even if the charge- sheet has been filed after expiry of the prescribed statutory time limit, under the said provision of law, would not in fact be maintainable.

Reliance was placed by the court in Sanjay Dutt v. State through C.B.I. Bombay [(1994) 5 SCC 410], wherein it was held that if the accused had made an application seeking bail under Section 167(2) Cr.P.C. after the expiry of the total period laid down in the said provision, but before the chargesheet is filed, the pendency of such an application would not affect his right to seek such bail, even in case of filing of the charge sheet prior to adjudication on such application.

The counsels for the petitioner include Adv. S.S. Ladrecha with Adv. Devendra Singh, while the counsel for the respondent includes PP Gaurav Singh.

Case Title: Akheraj v. State of Rajasthan

Citation: 2022 LiveLaw (Raj) 124

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